HMO did right by patient but lost the case anyway

LIABILITY

Opinion

Mitzi Krockover, M.D.

Humana's vice president for women's health says the plan's review process worked perfectly. Even so, the other side won $13 million. (Humana is appealing.) The case illustrates that once an issue goes before a jury that has little understanding of the clinical considerations, anything can happen. The real "winners?" Trial lawyers.

The case of Karen Johnson, the Louisville, Ky., woman who sued Humana over payment for a hysterectomy, has generated quite a bit of media attention in recent months.

The details of the case are: Johnson was diagnosed with carcinoma in situ, and her ob/gyn recommended a hysterectomy. Humana, which insured Johnson, disagreed, arguing that conization, a less invasive and less risky procedure, was more appropriate.

Independently, three board-certified experts reviewed the case and supported our position. However, in spite of those opinions, she chose to adhere to her physician's recommendation at her own expense, and then sued Humana. A local jury awarded her $13 million, a decision Humana is now appealing.

Before her hysterectomy, however, Johnson did undergo the conization Humana had approved, based on the recommendations of the external expert reviewers.

Pathology tests confirmed the excision of all the abnormal tissue, again indicating that a hysterectomy was not necessary. If a hysterectomy had been indicated at that point, Humana would, of course, have paid for the surgery.

To me, the Johnson case brings up three important issues. First, there continues to be significant variation in practice despite literature and data (i.e., evidence-based medicine) that support best practices.

For example, studies have shown that 30 to 50 percent of all hysterectomies are unnecessary and that another 10 percent could be avoided with alternate therapies. A procedure that's overutilized and that carries significant risks for the patient is clearly appropriate for review. External reviews by managed health care organizations are just one way that best practices can be communicated and implemented.

Second, patients should be encouraged to understand all of their therapeutic options and the inherent risks and benefits of any procedure so that they can make an informed choice. In this case, the system worked to provide that information — Johnson had the equivalent of a second, third, and fourth opinion.

And finally, litigation will never improve the quality of health care. Considering that 57 percent of all trial judgments go to attorney costs and court fees, and that the appeals process allows cases to drag on for years, the road to quality clearly does not run through the courthouse.

Moreover, litigation raises the cost of health care for all Americans, and every time health costs increase by 1 percent, 300,000 more people lose their health care insurance. Women are especially hard hit because they're more likely to work for small businesses, the first companies that drop coverage when costs increase.

This has a tremendous impact on families as well, especially when women are the sole support of many single-parent households.

In arguing Johnson's case, one of her attorneys said that America needs to "put medicine back in the hands of physicians." I wholeheartedly agree. Physicians -- not juries and trial attorneys — should make medical decisions.

That's why Humana uses outside medical experts in our review process and that's why we spend millions of dollars a year on programs, designed and reviewed by physicians, that result in measurable health improvement of our members.

We are very much in concert with physicians who work hard to advocate the best medicines for their patients. We encourage physicians to get involved in the review process and look for ways to translate best practices to the bedside.

Through cooperation, not litigation, we can work together to improve people's health.